While many court conferences are held virtually (and practitioners almost universally relish this change), there are still many in-person, in-court conferences. The single failure of plaintiff’s attorney to attend a conference can be the basis for dismissal of plaintiff’s case, which is certainly a drastic outcome. In Marathon Strategies, LLC v Centennial Props. Inc. 2025 NY Slip Op 34559(U) November 13, 2025 Supreme Court, New York County Docket Number: Index No. 656191/2021 Judge: Emily Morales-Minerva, we see how on NY County judge deals with getting caught on the subway.

“The Court grants plaintiff MARATHON STRATEGIES, LLC’s motion (seq. no. 05), for an order vacating the undersigned’s decision and order, dated February 05, 2025, which upon plaintiff’s default dismissed this action sounding in breach of contract (see CPLR § 5015 [governing relief from a judgment or order] ) .”

“On February 05, 2025, the Court dismissed this action (1) for plaintiff’s failure to appear at a time-certain and in-person call of the calendar and (2) for plaintiff’s failure to contact the Court with an excuse or request for an adjournment (see New York State Courts Electronic Filing system [NYSCEFJ Doc. No. 63, Decision and Order, dated February 05, 2025i see also Uniform Civil Rules for the Supreme Court and the County Court [22 NYCRR] § 202.27 [permitting dismissal where, as here, the defendant appears at the call of the calendar, but the plaintiff does not]) .2 In support of its application to vacate said dismissal, plaintiff contends that it presents a reasonable excuse for the default and a meritorious claim. Defendant CENTENNIAL PROPERTIES INC. F/K/A 9300 REALTY MANAGEMENT INC. submits written opposition, arguing plaintiff’s claim has no merit (see NYSCEF Doc. No. 89, affirmation in opposition, dated April 02, 2025).”

“[I]t is well-settled that courts generally have a “preference for deciding cases on the merits” (Liparulo v New York City Health & Hasps. Corp., 193 AD3d 593, 594 [1st Dept 2021], lv dismissed 37 NY3d 1088 [2021], citing Eisenstein v Rose, 135 AD2d 369, 370 [1st Dept 1987]; see also U.S. Bank N.A. v Zhu, 238 AD3d 628, 629 (1st Dept 2025] [recognizing the same]; Liu v Chang, 227 AD3d 410, 411 [1st Dept 2 024] [recognizing the same] ) . Even so, “this preference will not justify vacating a default judgment where the moving party fails to satisfy the two-prong burden of showing a meritorious defense and a reasonable excuse for the default” (Eisenstein, supra, 135 AD2d at 370). As to a reasonable excuse, neither “neglect” nor “incompetence” satisfies the requisite standard (Liu, 227 AD3d at 410-411). Conversely, law office failure may be acceptable as a reasonable excuse where the moving party supports the assertion “with a detailed and credible explanation of the default” (Agostinacchio v Jofaz Transportation, Inc., 238 ADJd 691, 693 [2d Dept 2025] [internal citations and quotations omitted] [emphasis added]). Law office failure should not be excused as reasonable if the moving party proffers a “vague, conclusory, and unsubstantiated” statement or account for the forfeiture (id. [internal citations and quotations omitted). Here, plaintiff submits the affirmation of counsel of record and the affirmation of a per diem attorney to support its excuse for failing to appear and to contact the Court with an excuse or request for an adjournment. The affirmation of counsel of record, explains that — one day prior to the court appearance — said counsel arranged for a per diem attorney to appear in their stead (see NYSCEF Doc. No. 78, affirmation of counsel of record, dated March 05, 2025). In turn, the per diem attorney’s affirmation provides that they failed to appear or to contact the court because of an unexpected subway delay (see NYSCEF Doc. No. 80, affirmation of per diem attorney, dated February 17, 2025). A delayed subway affecting counsel’s punctuality is more attuned to a New Yorker’s ordinary commuting challenges than it is to law office failure. Therefore, this Court exercises its discretion to excuse the circumstances here. Indeed, on the date of the subject conference, the per diem attorney eventually appeared in court, albeit after defendant left and the morning calendar concluded.”